61 Neb. 289 | Neb. | 1901
A thorough consideration of the briefs of counsel, and an examination of the record in this case, convince us that the judgment of conviction rendered in the trial should be permitted to stand undisturbed. The defendant was convicted of the crime of rape. The prosecutrix was a female, nineteen years of age, who for about three years prior, had been accustomed to work for others at general housework as a domestic. For a while she was engaged in learning the business of dressmaking, but failed. It is disclosed that, while not feeble minded, as the term is ordinarily understood, she was perceptibly below the average person of her age and sitnation in intelligence and strength of mind. On the night of the alleged crime she attended an entertainment and dance given by the colored people of Norfolk in celebration of emancipation day. Several different persons were concerned in the alleged assault, some five or six altogether. One obtained her consent to accompany her home at the close of the entertainment. Others, including the defendant, were cognizant of this arrangement, and discussed the matter with a view to a possible disturbance and fight between the party who was to accompany the prosecutrix and one other of the number, all of whom seemed bent on violence in some form or
Complaint is made as to several instructions requested by the defendant and refused by the trial court. Of the instructions given to the jury were some twenty given by the court on its own motion, and four at the request of the defendant. The fact that no complaint is urged in the brief of counsel as to the instructions given by the court on its own motion is well calculated to raise the
It is urged that two instructions upon the prior chastity of the prosecutrix as affecting the question of consent were erroneously refused. An examination of the record, however, discloses that in the third instruction given at the request of the defendant the jury’s attention was especially called to the subject, and they were invited to a consideration of the evidence on this phase of the case for the purpose of determining the question of whether the prosecutrix consented to have intercourse with the defendant at the time of the alleged assault. The instructions requested and refused but stated the proposition in a different form, and to have given them would have been only a repetition, and they were, therefore, properly refused.
Complaint is also made because of the refusal of the trial court to give three other instructions touching the question of the use of force and the want of consent as necessary elements to constitute the crime charged. These same questions were covered by other instructions given by the court on its own motion, as well as one given at the request of the defendant, and no error was committed in the refusal to give those requested, of which complaint is made.
Instructions were also requested on the theory that unless the prosecutrix was non compos mentis, she was capable of consenting, if the jury found she did consent, and the crime of rape could not, therefore, be established. There was no such issue in the case or before the jury, and the instructions were inapplicable and not based on
All the instructions requested and refused were quite fully, and sometimes by repetition, covered in the instructions already given. We find no error in the refusal to give any of the instructions requested.
Misconduct of the jury is also alleged, based upon the fact that during the deliberation of the jury, one, who was ill, was permitted to stay at the home of the sheriff, while the others went some little distance for the purpose of eating one of their meals. It is quite evident from the showing made that no one communicated with the one juror during the absence of the others, and by no possibility could any improper influence have been brought to bear upon him. There was no prejudice to any of the rights of the defendant from the acts complained of, and the ruling of. the tidal court on the objection' was eminently proper.
The evidence of one W. E. Reed, an attorney at" law, as to statements alleged to have been made by the prosecutrix, was sought to be elicited by the defendant. Objection was made because, at the time of the alleged statements, the relation of attorney and client existed, find the statements were, therefore, privileged communications. It is shown by the record that the relation claimed did exist; that the father of the prosecutrix, accompanied by her and her uncle, went to the office of Mr. Reed, paid him a fee and consulted him regarding the case, and that at this time the prosecutrix made the
The court found that the county attorney was disqualified from acting in the case and appointed other practicing attorneys to prosecute. This action is made the basis of a claim of error. The order was entered after an investigation of the matter, and the evidence upon which the court acted, not being preserved in the record, will therefore be presumed to have been sufficient. From i he record presented we can think of no other proper action on the part of the court than to appoint some one to prosecute. The county attorney had refused to prosecute, and the filing of the information was had only under the direction of the court. From the reasons assigned for not wishing to prosecute, which are preserved in the record, the trial court was justified in concluding that the county attorney had disqualified himself from efficiently representing the state in the prosecution of the case, and the appointment of some other counsel appears for that -purpose to be entirely proper and authorized by section 21, chapter 7, Compiled Statutes, 1899.
Finding no error in the record, and holding, as we do, the evidence sufficient to justify the verdict and sustain the judgment of the trial court, the same must be allowed to stand.
Affirmed.